MERIAL INC, et al v. CEVA SANTE ANIMALE SA, et al

Filing 125

ORDER. Ceva France's 105 Motion to Dismiss Complaint for insufficient service of process shall be granted unless Plaintiffs properly effect service on Ceva France within 60 days of today's Order. Ordered by US DISTRICT JUDGE CLAY D LAND on 01/26/2016. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
MERIAL INC. and MERIAL SAS,
Plaintiffs,

*
*

vs.

*

CEVA SANTÉ ANIMALE, S.A.,
*
HORIZON VALLEY GENERICS, INC.,
TRUE SCIENCE HOLDINGS, LLC, and *
TRURX LLC
*
Defendants.
*

CASE NO. 3:15-CV-40 (CDL)

O R D E R
Defendant Ceva Santé Animale S.A. (“Ceva France”) seeks to
dismiss Plaintiffs’ complaint based on insufficient service of
process.

The resolution of this motion ultimately requires the

Court to decide whether the Convention on the Service Abroad of
Judicial

and

Extrajudicial

Documents

in

Civil

or

Commercial

Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 (“Hague
Convention”)

authorized

Plaintiffs

to

serve

their

against Ceva France, a French company, by mail.

complaint

Finding that

the Hague Convention does not authorize service by mail under
the circumstances presented here and that Plaintiffs have not
otherwise properly served Ceva France, the Court orders that if
Plaintiffs do not properly serve Ceva France within 60 days of
today’s Order, Ceva France’s motion to dismiss shall be granted.

STANDARD
To

determine

whether

a

legal

action

has

been

properly

served, the Court first looks to Rule 4 of the Federal Rules of
Civil Procedure.

With one exception

that is not applicable

here, a foreign company must be served in any manner that an
individual in a foreign country may be served under the Federal
Rules of Civil Procedure.

Fed. R. Civ. P. 4(h)(2).

Rule 4(f)

prescribes the method for serving a foreign individual and thus
also for serving a foreign company such as Ceva France.
France may be served:
(1) by any internationally agreed means of service
that is reasonably calculated to give notice, such as
those authorized by the Hague Convention on the
Service
Abroad
of
Judicial
and
Extrajudicial
Documents;
(2) if there is no internationally agreed means, or if
an international agreement allows but does not specify
other means, by a method that is reasonably calculated
to give notice:
(A) as prescribed by the foreign country’s law
for service in that country in an action in its
courts of general jurisdiction;
(B) as the foreign authority directs in response
to a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country’s
law, by:
* * *
(ii) using any form of mail that the clerk
addresses and sends to the individual and
that requires a signed receipt; or

2

Ceva

(3) by other means not prohibited
agreement, as the court orders.

by

international

Fed. R. Civ. P. 4(f).
In this case, the United States and France are signatories
to the Hague Convention.

Therefore, the appropriate means for

serving the complaint in this action on Ceva France are those
that are set out in the Hague Convention.
Aktiengesellschaft

v.

Schlunk,

486

U.S.

See Volkswagenwerk
694,

705

(1988)

(“[C]ompliance with the Convention is mandatory in all cases to
which it applies.”).1
DISCUSSION
Plaintiffs contend that they properly served Ceva France
pursuant to the Hague Convention as follows:
private

process

server

to

serve

Herve

Plaintiffs hired a
Balmes,

who

Merial

contends is a member of Ceva France’s Executive Committee, with
a copy of the summons, amended complaint, and exhibits at Ceva
France’s

principal

place

of

business

1

in

Libourne,

France.

Since the Hague Convention provides an internationally agreed means
of service in this case and does specify various means for
accomplishing service, it is doubtful that subsection (2) of Federal
Rule of Civil Procedure 4(f) applies here; subsection (2) applies “if
there is no internationally agreed means, or if an international
agreement allows but does not specify other means.” Fed. R. Civ. P.
4(f)(2).
Even if Rule 4(f)(2) did apply, Plaintiffs have not
established that they complied with its requirements.
They have not
demonstrated that service by mail is authorized under French law in
France’s courts of general jurisdiction. They did not have the Clerk
of Court send their summons and complaint by mail.
They did so
without involvement of the Clerk.
And they did not obtain a court
order. Thus, even if subsection (2) is available notwithstanding the
application of the Hague Convention, Plaintiffs have not complied with
it, and the sole question, therefore, is whether Plaintiffs properly
served Ceva France pursuant to the provisions of the Hague Convention.

3

Plaintiffs argue that such service complies with Article 10(c)
of the Hague Convention.
shall

Article 10(c) provides that service

be

“through

the

judicial

competent

persons

of

the

Convention art. 10(c).

officers,

State

or

officials

or

destination.”

Hague

This provision has been interpreted to

mean that service must be made through an authorized
bailiff

or

huissier

other

de

justice,

which

was

not

done

French
here.

Perfumer’s Workshop, Ltd. v. Roure Bertrand du Pont, Inc., 737
F. Supp. 785, 789 (S.D.N.Y. 1990).
a private process server.
Court

to

any

authority

Instead, Plaintiffs employed

And Plaintiffs did not point the
that

a

private

process

server

is

considered a “judicial officer[], official[], or other competent
person[] of” France.

Hague Convention art. 10(c).

For this

reason, the Court cannot find that service on Balmes satisfies
Article 10(c).
Merial next delivered via certified mail two copies of the
summons, amended complaint, and exhibits to Ceva France’s CEO,
Marc Prikazsky, at Ceva France’s principal place of business in
Libourne, France.

Ceva France does not seriously dispute that

it received the documents that Merial mailed to it and that Ceva
France

has

actual

notice

of

this

lawsuit.

But

Ceva

France

contends that service by certified mail is not authorized under
Article 10(a) of the Hague Convention.

4

Article 10(a) states: “Provided the State of destination
does not object, the present Convention shall not interfere with
. . .

the

freedom

to

send

judicial

documents,

channels, directly to persons abroad . . . .”
art. 10(a).

-

postal

Hague Convention

It is undisputed that France does not object to

Article 10(a).
France

by

Hague Conference on Private International Law,

Central

Authority

&

practical

information,

https://www.hcch.net/en/states/authorities/details3/?aid=256
(last visited Jan. 25, 2016).

The question is whether Article

10(a) authorizes service of a complaint in a legal action by
registered mail.
The answer to this question depends on whether the word
“send” means “serve.”

In the context of the Hague Convention

and Rule 4 of the Federal Rules of Civil Procedure, to “serve”
means

to

deliver

judicial

documents

to

another

party

to

litigation in a manner that is designed to provide reasonable
notice to the other party and that is specifically authorized by
law to initiate a legal action.
does

not

have

the

same

To “send” a judicial document

specialized

meaning

as

to

“serve.”

“Send” simply means the transmission of something to someone.
It

is

not

necessarily

connected

to

any

legal

requirement

regarding how a party in litigation is to be notified of, or
provided with, judicial documents.

Of course, a litigant could

“serve” an opposing party under the law by “sending” the party

5

judicial

documents

in

a

manner

prescribed

by

the

law.

But

simply “sending” someone documents in a certain manner does not
necessarily mean that the person has been “served” under the
law.

And even if the law allows judicial documents to be “sent”

in a certain manner, that does not mean that the law permits
judicial documents to be “served” in that same manner.

Service,

particularly as it relates to the initiation of a legal action,
arguably

contemplates

judicial

documents

failure

to

a

higher

will

respond

to

degree

ultimately
the

service

of

be

assurance

delivered

can

have

that

the

since

the

serious

legal

consequences.
The

Court

agrees

with

the

Fifth

Circuit’s

rationale

distinguishing “serve” from “send” as used in Article 10(a).

As

the Fifth Circuit observed, the Court must “rely on the canons
of statutory interpretation rather than the fickle presumption
that the drafters’ use of the word ‘send’ was a mere oversight.”
Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 384 (5th
Cir. 2002). “‘Absent a clearly expressed legislative intention
to

the

contrary,’

a

statute’s

regarded as conclusive.’”

language

‘must

ordinarily

be

Id. (quoting Consumer Prod. Safety

Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).

The

Fifth Circuit held that Article 10(a) does not authorize service
by mail, explaining that “because the drafters purposely elected
to

use

forms

of

the

word

‘service’

6

throughout

the

Hague

Convention, while confining use of the word ‘send’ to article
10(a), [the court] will not presume that the drafters intended
to give the same meaning to ‘send’ that they intended to give to
‘service.’”

Id.; see also Bankston v. Toyota Motor Corp., 889

F.2d 172, 174 (8th Cir. 1989) (“We conclude that sending a copy
of a summons and complaint by registered mail to a defendant in
a

foreign

country

is

not

a

method

of

service

of

process

permitted by the Hague Convention.”).
The Court recognizes that a circuit split exists and that
other courts have ruled that Article 10(a) authorizes service by
mail.
2004)

E.g., Brockmeyer v. May, 383 F.3d 798, 808 (9th Cir.
(holding

“that

the

Hague

Convention

allows

service

of

process by international mail” but that “any service by mail”
must be performed in accordance with the requirements of Rule
4(f)”); Ackermann v. Levine, 788 F.2d 830, 839-40 (2d Cir. 1986)
(finding that Article 10(a) permits mail service in countries
that

are

signatories

to

the

Hague

Convention

and

have

not

objected to mail service under Article 10(a)); see also Research
Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 926 (7th Cir. 2002)
(noting that service by certified mail in France is permitted
under

Article

Dodwell,

152

10(a)
F.3d

of

304,

the

Hague

307-08

(4th

Article 10(a) permits service by mail).

7

Convention);
Cir.

1998)

Koehler
(noting

v.
that

Although the Eleventh Circuit has not addressed the issue,
several district courts from this circuit have also found that
Article 10(a) allows service by mail.

See Tracfone Wireless,

Inc. v. Hernandez, No. 15-23032-CIV, 2015 WL 5165718, at *3
(S.D. Fla. Sept. 2, 2015) (“[P]rovided the destination country
does not object, service to individuals abroad can be made via
postal channel (such as FedEx) under Fed. R. Civ. P. 4(f)(1).”);
TracFone Wireless, Inc. v. Unlimited PCS, Inc., 279 F.R.D. 626,
630 (S.D. Fla. 2012) (highlighting a U.S. Department of State
deputy legal adviser’s criticism of Bankston’s holding that the
Hague

Convention

does

not

permit

service

of

process

by

registered mail); Schiffer v. Mazda Motor Corp., 192 F.R.D. 335,
337-38 (N.D. Ga. 2000) (collecting cases and adopting “the view
that Article 10 does permit service of process by mail”);

cf.

Geopolymer Sinkhole Specialist, Inc. v. Uretek Worldwide Oy, No.
8:15-CV-1690-T-36JSS, 2015 WL 4757937, at *3-4 (M.D. Fla. Aug.
12,

2015)

Conference

(noting
on

that

Private

the

Permanent

International

Law

Bureau

of

the

concluded

“the

Hague
term

‘send’ in Article 10(a) is to be understood as meaning ‘service’
through postal channels”).
With all due respect to these other courts, this Court
finds

that

the

resolution

of

this

issue

involves

straightforward exercise of statutory interpretation.

a

No matter

how many State Department officials may say that “send” means

8

“serve,” that does not make it so.

The signatories of the Hague

Convention knew what the word “serve” meant in the context of
serving legal documents.

They purposefully chose not to use

that word in Article 10(a).

It is not the proper place for a

single judge to insert that word in the place of the word the
drafters actually chose just because the judge speculates that
may

be

what

the

drafters

meant.

To

do

so

would

not

be

a

legitimate exercise of statutory interpretation but would create
judicial mischief.2

Accordingly, the Court finds that Plaintiffs

did not properly serve Ceva France when they attempted to do so
through registered mail.
Plaintiffs contend that even if they did not effect service
pursuant

to

the

Hague

Convention,

France by other means.

they

properly

served

Ceva

Plaintiffs argue that they properly

served Ceva France by personally delivering service of process
to Corporation Service Company, the Georgia registered agent for
Ceva Animal Health, LLC, a U.S. subsidiary of Ceva France.
France

acknowledges

that

Corporation

2

Service

Company

Ceva
is

a

Plaintiffs argue that if “send” does not mean “serve”, then its use
in Article 10(a) is meaningless.
But Article 10(a) simply provides
that nothing in the Hague Convention shall be deemed to interfere with
a party’s ability to send/transmit legal documents by mail if the
signatory country does not object to this method of transmitting legal
documents. Thus, it clarifies that the transmission of documents that
do not require legal “service” can be accomplished through the mail.
The drafters knew how to describe the transmission of documents for
service purposes and they did so in subsections (b) and (c) of Article
10 when they used the phrase “to effect service” instead of “to send.”
The Court declines to speculate that they did not mean what they said.

9

registered agent for its subsidiary, but maintains that it is
not a registered agent for Ceva France.
No. 105-1.

Strait Decl. ¶ 4, ECF

Plaintiffs presented no evidence to the contrary.

Plaintiffs also maintain that they effected service on Ceva
France by

personally serving Craig Wallace, the CEO of Ceva

Animal Health, LLC, with a Summons and Amended complaint at his
home (after attempting to serve him at his office but being told
that

Wallace

contends

that

would

not

Wallace

be

is

produced

Ceva

for

France’s

service).
North

Merial

American

Zone

Director, although Ceva France presented evidence that he is an
officer of Ceva U.S. Holdings, Inc. and Ceva Animal Health LLC
but is not an employee, officer, director, or agent of Ceva
France and is not authorized to accept service on behalf of Ceva
France.

Strait Decl. ¶ 3.

Plaintiffs produced no evidence to

rebut Ceva France’s representations and pointed the Court to no
authority that its attempts at service on Wallace were proper
under Rule 4 of the Federal Rules of Civil Procedure.3

3

Plaintiffs argue that Wallace’s social networking profile on LinkedIn
established that he was an officer of Ceva France because it stated
that he was “CEO and North America Pacific Zone Director” at “CEVA
SANTE ANIMALE.” Pls.’ Resp. to Defs.’ Mot. to Dismiss Ex. 12 at 16,
LinkedIn Profiles, ECF No. 38-13 at 17.
But Wallace’s LinkedIn
profile does not establish that Wallace was an officer of the legal
entity Ceva Santé Animale S.A. The profile said that Wallace was CEO
(and North America Zone Director) of CEVA SANTE ANIMALE, but there is
no evidence that Wallace was ever CEO of Ceva Santé Animale S.A.
Rather, the evidence is that Marc Prikazsky holds that position.
Therefore, the LinkedIn profile does not establish that Wallace is an
officer of Ceva Santé Animale S.A. or that he was authorized to accept
service on behalf of Ceva France.

10

CONCLUSION
As

discussed

above,

Plaintiffs’

motion

to

dismiss

for

insufficient service of process (ECF No. 105) shall be granted,
unless Plaintiffs properly effect service on Ceva France within
60 days of today’s Order.

IT IS SO ORDERED, this 26th day of January, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

11